The Character Requirement (Australian visas)

The Character Requirement

​Everyone who wants to enter or stay in Australia must satisfy the character requirement as set out in Section 501 of the Migration Act 1958 (the Act). This includes all non-citizens, sponsors of visa applicants and non-migrating family members seeking to enter or stay in Australia.

Visa holders must also continue to satisfy the character requirement.

Irrespective of which visa you apply for, you must advise Australian Immigration if you have any criminal convictions inside or outside of Australia, and you may be asked to provide police certificates as part of your assessment against the character test. If you do not inform Australian Immigration of your criminal history, your visa application may be refused or your visa cancelled.

The Department of Immigration & Boorder Protection (DIBP) and the Minister for Immigration and Border Protection have the power to refuse or cancel a visa on the basis that a person does not pass the character test.

In some cases, even if you do not pass the character test, DIBP or the Minister can exercise discretion not to cancel your visa. 

Decisions to cancel or refuse visas on the basis of the character test are made after full consideration of all the circumstances of a case.

Mandatory cancellation

If you are currently serving a full-time custodial sentence and have ever been sentenced to 12 months or more imprisonment, regardless of time actually served, or have been convicted of, had a charge proven for or have been found guilty of a sexually based crime involving a child, your visa must be cancelled. DIBP will provide you with 28 days to request revocation of this decision if your visa is cancelled in these circumstances.

In considering requests for revocation of a mandatory cancellation decision, DIBP will consider all circumstances of your case.

The character test

You will not pass the character test if:

• you have a substantial criminal record
• you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
• while you were in immigration detention
• during an escape from immigration detention
• after an escape, but before you were taken into immigration detention again.
• you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct
• the Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence
• your past and present criminal or general conduct shows that you are not of good character
• there is a risk that while you are in Australia you would:
• engage in criminal conduct
• harass, molest, intimidate or stalk another person
• vilify a segment of the Australian community
• incite discord in the Australian community or in a part of it
• be a danger to the Australian community or a part of it.
• you have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child
• you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
• you are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.

Substantial criminal record

A substantial criminal record is based on the length of a sentence imposed by a court of law, rather than the time actually spent in prison.

For the purpose of the character test, a person is deemed to have a substantial criminal record if they have been:

• sentenced to death or life imprisonment
• sentenced to a term of imprisonment of 12 months or more
• sentenced to two or more terms of imprisonment (even if served concurrently), where the total of those terms is 12 months or more
• found by a court to be not fit to plead in relation to an offence but found to have committed the offence and as a result have been detained in a facility or institution.

Discretionary powers and Ministerial Direction 65

When a person does not pass the character test, the Minister or his delegate will decide whether or not to refuse the application or sponsorship, or to cancel their visa. When making this decision, a wide range of factors will be considered, including the protection of the Australian community, the best interests of any minor children in Australia who may be affected by a decision to refuse or cancel the person's visa and expectations of the Australian community. Other factors are also considered, such as Australia's international legal obligations, the impact of visa refusal or cancellation on a person's family in Australia, any impact on Australian business interests and the impact on the Australian community if a visa were to not be refused or cancelled.

The exercise of the discretion is guided by Ministerial Direction 65 made under section 499 of the Act.

 

 

 

 

 

 

 

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New Character Provisions Likely

The Minister for Immigration has introduced a Bill that amends the Migration Act 1958 in terms of what is known as the character provisions.

 
The Bill has been referred to the Senate, Legal and Constitutional Committee for consideration.

If the Bill does become law in its present form a number of significant changes will be introduced including mandatory cancellation of a visa for an offence where the person has received a sentence of 12 months or more, or where they have committed a "sexually based offence involving a child"

 

One proposed amendment is a new s 501(6), the intention of which is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. 

Further, a reasonable suspicion of such membership or association is sufficient to not pass the 

character test. There is no requirement that there be a demonstration of special knowledge of, 
or participation in, the suspected criminal conduct by the visa applicant or visa holder.

These proposed changes, if made into law, will give the Government broad ranging visa cancellation powers. The existing powers of the Minister in relation to the character provisions are already quite extensive with the result that large numbers of visa holders (many of whom have been permanent residents of many years standing) have had their visas cancelled and forced to return to their country of origin.

The introduction of broader powers which can be exercised on the basis of a “reasonable suspicion” will undoubtedly expose a large number of visa holders to potential adverse action by the Minister ,and because a decision can be based on suspicion only, will be difficult to challenge.

 

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